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Safety Valve: Statutory Construction Saves the Day in International Interdiction Appeal; Inter-Circuit Split Noted—United States v. Alfredo Mosquera-Murillo, et al, _ F.3d _ (D.C. Circuit, No. 16-309 (Aug. 24, 2018).

Following a Coast Guard interdiction of the Mistby, a Colombian vessel which was bringing cocaine and marijuana to Panama, the three defendants pleaded guilty to conspiring to distribute, and possess with intent to distribute, the drugs on board, in violation of the Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. § 70501 et seq., and the Controlled Substances Import and Export Act, 21 U.S.C. § 951 et seq.

On appeal the defendants argued that they were not on board the vessel when it was intercepted and that the district court lacked subject-matter jurisdiction over their prosecutions because Colombia’s assent to U.S.jurisdiction over individuals associated with the ship supposedly was limited to persons found on board the vessel. Second, appellants contended that their offense of conviction was covered by the so-called safety-valve provision, 18 U.S.C. § 3553(f), which exempts covered offenses from mandatory-minimum sentences such as the 10-year terms each of them received.

The panel (Circuit Judges Srinivasan, Millett & Sentelle) concluded that the district court had subject-matter jurisdiction under the terms of the applicable treaty between the United States and Colombia, although none of the defendants had been aboard the ill-fated boat.

The defendants, the Government claimed, were insiders who passed along their knowledge of the interdiction programs’ routes and otherwise assisted the shippers. Pointing to the Coast Guard’s certification memorializing Columbia’s assent to the seizure and extradition, Colombia waived objection to the United States exercising jurisdiction over the “MISTBY, all associated contraband, and persons on board”—but not persons like the defendants who never set foot on the vessel—the appellants insisted they couldn’t be prosecuted here. (Slip Op. at 3-5).

The district court rejected the subject-matter jurisdiction claim because Colombia had both waived jurisdiction over the Mistby and consented to the defendants’ extradition. (Id. at 5 (citing United States v. Mosquera-Murillo, 153 F. Supp. 3d 130, 158 (D.D.C. 2015)). Ultimately the Court of Appeals upheld that determination and rejected the defense theory that Colombia’s assent to jurisdiction over the vessel and those on board excluded the United States from prosecuting those not on board.  (Slip Op. at 9-10). “Rather,” the panel explained, “the certification confirms that Colombia’s consent to U.S. jurisdiction encompasses persons on board the Mistby, whose conduct on board the vessel is attributable to co-conspirators like the defendants.”  (Id. at 11).

The defense countered that under Colombian law, only those literally “on board” the vessel could be prosecuted. Colombian law provided that a “‘punishable act shall be deemed to have occurred’ in ‘the place where the effect was produced or should have been produced,””—language that “mirrors the conspiracy-law principle under which a land-based conspirator in an enterprise that engages in prohibited conduct on board a vessel will be treated as having himself participated in the acts on board the vessel.”  (Slip Op. at 10-11). And in any event, the panel looked to practical reality: the Colombian government had granted the United States’ extradition request, which “fortifies our interpretation of the Coast Guard’s earlier certification; and that certification substantiates the district court’s subject-matter jurisdiction by demonstrating that the Mistby  is  a  ‘vessel  subject  to  the  jurisdiction  of  the  United States’ for purposes of the defendants’ prosecutions” under 46 U.S.C. § 70502(c)(1). (Slip Op. at 11-12).

The defense was more successful on the second aspect of its appeal. The Government, evidently in return for a “wired” plea, had agreed to allow the defendants to reserve their right to argue that notwithstanding the applicability of mandatory-minimum sentences of 10 years of imprisonment, 21 U.S.C. § 960(b)(1)(B), they were eligible for relief under the safety-valve provisions of18 U.S.C. § 3553(f), and to appeal any contrary decision by the trial judge. (Slip Op. at 6).

The defendants submitted that the district court had erred by holding that they were ineligible for safety-valve relief from the 10-year mandatory-minimum term to which they were sentenced. The safety-valve provision is entitled “Limitation on applicability of statutory minimums in certain cases.” 18 U.S.C. § 3553(f). It provides that, “in the case of an offense under” one of five enumerated provisions—21 U.S.C. §§ 841, 844, 846, 960, or 963—“the court shall impose a sentence pursuant to [the sentencing] guidelines . . . without regard to any statutory minimum sentence, if the court finds at sentencing” that five specified requirements have been met. (Slip Op. at12). “The sole question we face here” the panel stated, “is whether the defendants’ crime is ‘an offense under’ §960 within the meaning of the safety-valve provision. 18 U.S.C. § 3553(f).” (Id. at 13).

Following the de novo review accorded questions of statutory construction interpretation, the panel “agree[d] with the defendants: they were convicted of “an offense under” § 960, and they therefore satisfy the threshold condition for safety-valve eligibility.” (Slip Op. at 13) (citing United States v. Cordova, 806 F.3d 1085, 1098 (D.C. Cir. 2015)). The reason, Judge Srinivasan’s opinion explained, lay in “the relationship between 960 and the MDLEA provisions the defendants pleaded guilty to violating.” (Slip Op. at 13).

  1. The MDLEA prohibits distributing and possessing with intent to distribute, drugs on board a covered vessel. 46 U.S.C. § 70503(a)(1). A separate MDLEA provision prohibits “conspiring to violate section 70503,” and states that anyone who so conspires “is subject to the same penalties as provided for violating section 70503.” Id., § 70506(b). “]T]he first time a person conspires to violate §70503(a)(1), she  . . . “‘shall be punished as provided in . . . 21 U.S.C. [section] 960.’” (Slip Op. at 13) (quoting 46 U.S.C. § 70506(a)-(b)).  “[H]ere, there is no dispute that the defendants’ cases could be described as involving “an offense under” 46 U.S.C. §§ 70503(a)(1) and 70506(b).” ( at 14).
  2. The defendants’ crime of conviction “also involved a violation of (or, equivalently, an offense under) 21 U.S.C. § 960.” “Offenses are defined by the provisions that supply their elements. And here, the defendants’ offense draws certain elements from the relevant MDLEA provisions, 46 U.S.C. §§ 70503(a)(1), 70506(b), and draws other elements from 21 U.S.C. § 960.” (Slip Op. at 15) (citing Patterson v. New York, 432 U.S. 197, 210 (1977)).  “In that light, the defendants’ crime is ‘an offense under’ both the MDLEA and § 960, drawing offense elements from each.” (Slip Op. at 14-15) (emphasis original).  “[B]ecause the drug-type and drug-quantity criteria in § 960 constitute some of the elements of the defendants’ offense (with the other elements supplied by the MDLEA), their cases involve ‘an offense under’ § 960 for purposes of safety-valve eligibility.  18 U.S.C. § 3553(f).” ( at 15).
  3. In addition, both the indictment and plea agreements had conflated the charges, referring to violating the MDLEA and Title 21, § 960. (Slip Op. at 15-16).                Not so fast, the Government contended.  The Court of Appeals noted that “[d]espite the government’s indictment and plea agreements describing the defendants as having violated § 960, the government now submits that the defendants were not convicted of ‘an offense under’ §960 for purposes of safety-valve eligibility.”  “According to the Government, the safety-valve provision’s reference to ‘an offense under’ § 960 means only those specific offenses listed in § 960(a)—not other offenses defined in part by the drug-type and drug-quantity elements set out in § 960(b).” (Slip Op. at 16-17). The panel was unimpressed by this claim. “The statute speaks in terms of an ‘offense under’ § 960 without limitation—not an offense under only § 960(a). Plus, the structure of § 960 demonstrates that the defendants’ crime qualifies as ‘an offense under’ §960 no less than the crimes listed in §960(a).” (Id. at 17).

Not only was the statutory text unhelpful to the Government’s position, history fully supported the defense. As the Court of Appeals put it in the course of tracing a century of statutory antecedents, “treating the defendants as having violated § 960, and thus as eligible for safety-valve relief, would align with Congress’s nearly unbroken pattern of setting identical penalties for drug crimes committed in domestic waters and drug crimes committed on the high seas.” (Slip Op. at 18-19). Given this “100-year pattern of penalty parity,” the court concluded that the defense had the better of the argument.

The D.C. Circuit’s decision disagrees with decisions of the Eleventh and Ninth Circuit, thus yielding an inter-circuit split. (Slip Op. at 19-20) (citing United States v. Pertuz-Pertuz, 679 F.3d 1327, 1329 (11th Cir. 2012) (per curiam) and United States v. Gamboa-Cardenas, 508 F.3d 491, 496 (9th Cir. 2007)). As Judge Srinivasan explained in directing that the sentences be vacated, “Neither of those decisions expressly assesses whether the drug-type and drug-quantity facts supplied by § 960(b) constitute offense elements, such that an MDLEA offender penalized under   § 960(b) should be considered someone who has violated both the MDLEA and § 960.  That consideration, as we have explained, is pivotal to our conclusion.” (Slip Op. at 20).

  • The victor’s laurel goes to Julia Fong Sheketoff, who argued the cause, and was aided on the briefs by Louis K. Fisher and Sparkle L. Sooknanan. Also participating were long-time appellate advocates Federal Defender A. J. Kramer, Richard K. Gilbert and the ever-redoubtable Carmen Hernandez.
  • Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.